December 16, 2009

U.S. District Judge Royce Lamberth has a well-deserved reputation for speaking his mind. And he's had plenty of experience dealing with so-called 'war on terror' cases, through his service on the bench. So that makes the following potentially interesting:

Now the chief judge of the U.S.
District Court for the District of Columbia, Judge Lamberth will discuss the controversial
aspects of trying terrorists in Article III Courts during a Dec. 17 breakfast
meeting sponsored by the American Bar Association's Standing Committee on Law and National Security. Judge Lamberth previously served on the secretive Foreign Intelligence Surveillance Court.

The program is being held at the University Club, from 8:20 a.m. to 9 a.m. Though not apparently open to the general public, the event will be open to the press.

November 18, 2009

Attorney Brian Leighton won a $3 million settlement for his client, former Drug Enforcement Administration agent Richard Horn. The case, some 15 years after Horn claims the CIA illegally eavesdropped on him in Burma, is now done.

Almost.

Now, Leighton and the Justice Department are continuing their long-running fight. This time, they are wrangling over whether Judge Royce Lamberth should dump vacate earlier court orders citing CIA employees for committing a "fraud on the court." Judge Lamberth was very unhappy with what he believed was a series of misleading filings made by top CIA employees.

With the case dismissed, Justice wants the earlier court orders dropped into the memory hole. Not so fast, Leighton says in his latest filing.

Argues Leighton:

"The Court’s January 15, and February 6, 2009 orders were clearly justified by the Court, based upon substantial evidence. They are important to future litigants, law scholars, students, Congress, the Executive Branch, and the public in general and are important as they pronounce an example of the government when it does not cut square corners – as it insists the public and Horn do – and remain responsible for its fraud on the Court."

November 16, 2009

Former federal prosecutor Richard Convertino is still immersed in his effort to find out who leaked information about him to the Detroit Free Press. This case has been going on for five years now, and from the looks of things will not end soon.

On Monday, U.S. District Judge Royce Lamberth declared he would examine in camera some potentially relevant Justice Department documents. The ruling itself is simply a procedural development, but it's a reminder of how long this sensitive dispute has been roiling.

Convertino says someone in Justice sought to smear him by leaking information about an Office of Professional Responsibility investigation into claims that Convertino had withheld potentially exculpatory documents. The Free Press's David Ashenfelter reported on the investigation Jan. 17, 2004. As Judge Lamberth reported:

"Following the leak, the Office of the Inspector General (“OIG”) began an investigation to determine who provided the information to the press, ultimately concluding that there was insufficient evidence to prove, by a preponderance of the evidence, who the leaker was."

As part of his claim, Convertino seeks 736 Justice Department documents. You know, the kind that might say something like: Memo for the file, here are the secret documents to leak to our friendly reporter.

While noting pointedly that "plaintiff has failed to make a viable claim to a grand cover-up -- failing to provide any evidence of suspicions of wrongdoing during the investigations," Lamberth agreed to privately review some documents for potential release to Convertino.

Hundreds of court filings in the previously sealed case can still be a treasure trove for anyone with a PACER account and an interest in the states secret issue, not to mention an interest in Judge Royce Lamberth's unhappiness with past and present members of the U.S. intelligence community.

Mr. Horn, now retired from the DEA, contended a CIA officer and State Department diplomat collaborated in an illegal eavesdropping. He said in a July 24 e-mail interview:

"DOJ has engaged in every imaginable tactic to derail this case. The common component to all these strategies is delay, delay, delay. In their view, there's always a chance that my attorney or I will stumble out in front of a Mack truck!"

And...

"Judge Lamberth has no trouble discerning the distinction between an innocent 'difference in recollection' and a damned lie designed to conceal culpability."

And...

"At one point I asked the former head of all of DEA's foreign offices, whom I know very well, to write a declaration. It would have been favorable to me. The Department of Justice attorney...knew that and directed DEA to disallow him from writing the declaration. Fair?"

And, with regard to DEA's relationship with other agencies and the overall anti-drug effort...

"DEA is a little bastard stepchild that was abandoned on the back steps of the Department of Justice...the government gave DEA's primary jurisdiction to a long list of other federal agencies, including the FBI, ATF, Postal Service, Coast Guard, park rangers, etc., all of which developed their own independent intelligence files. There was much duplication of effort, interagency rivalry and wasted money."

And...

"I sit on the porch with a cheap cigar and a vodka tonic (and) wave at passing cars...I am not interested in publicity, fame or even small measures of attention. In fact, I wish it was someone else's name on all those pleadings."

November 03, 2009

Former Drug Enforcement Administration officer Richard Horn has just about wrapped up his long legal saga.

Horn filed suit in 1994 against CIA and State Department employees he said eavesdropped on his telephone conversations while he was based in Burma. Until relatively recently, this lawsuit was under seal. But after Judge Royce Lamberth brought the case into the open, and raised serious questions about the integrity of top CIA employees, there developed -- as if by magic! -- considerable momentum for a settlement.

Now, in an Oct. 27 court filing, Horn's attorney Brian Leighton noted that the parties have "very recently" entered into a settlement agreement. As part of that agreement, Leighton filed a request to withdraw his earlier request that Judge Lamberth impose civil sanctions on former CIA Director George Tenet and others. In an accompanying Oct. 27 filing that withdraws an earlier request for attorneys fees, Leighton declared that "the settlement agreement and the stipulated dismissal with prejudice will be filed with the Court within the next few days."

October 06, 2009

Curious about Kimbrough v. United States and how it matters? Well, then, meet Anthony J. Irving, whose grim life has just changed marginally for the better.

Irving was 20 years old when a federal judge sentenced him to 168 months in prison for selling crack cocaine to an undercover officer. That was in October 1994. Now, Irving is 35 years old and still in prison. But in a ruling Monday, U.S. District Judge Royce Lamberth agreed with Irving's public defender Mary Manning Petras that Irving's sentence should be reduced to 135 months.

The sentence reduction comports with the Supreme Court's reasoning in Kimbrough, calling into question the disparity between crack cocaine and powder cocaine sentences. Argued Petras:

"While his conduct was inexcusable...there is no reason to sentence Mr. Irving to a term of incarceration dramatically more severe than a sentence that would be imposed on a defendant who committed the same acts and had the same criminal history, but sold and possessed powder, not crack, cocaine."

Prosecutors urged no mercy, noting that Irving "grinned and looked at the government's main witness after the verdict was announced and made a slashing announcement across his throat." Irving also flipped off the jury and, once in prison, had a series of fights before, apparently, he began to settle down about 10 years ago.

Fighting, of course, may be pure survival mechanism in prison for a 20-year-old. In any event, Judge Lamberth noted approvingly that Irving has completed his GED while in prison, as well as assorted drug education programs. A reduction in sentence, accordingly, is warranted.

ABOUT THIS BLOG

"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.